Amendments ( and new clauses ? is this
required?) to be Moved on Behalf of
the Government

(Circulated by
authority of the Parliamentary Secretary to the Minister for
Industry, Tourism and Resources, the Hon Warren Entsch
MP)

DESIGNS (CONSEQUENTIAL AMENDMENTS) BILL
2002

OUTLINE

This The Bill as introduced amends the
Copyright Act 1968 to correct the anomalies that possibly
defeat the policy intent of a number of provisions that operate
generally to limit copyright protection for essentially industrial
products. The Bill also makes amendments to a number of
other Acts consequential to the enactment of the Designs Act
2002 .

The se Government amendments to the Bill substitute a new section 76
of the Copyright Act to recognise the enactment of the Designs
Act 2002 and add application provisions. They also make a
consequential amendment to the Scout Association Act
1924 .

FINANCIAL IMPACT

The amendments will
have no impact on Commonwealth expenditure or revenue.

DESIGNS (CONSEQUENTIAL AMENDMENTS)
BILL 2002

NOTES ON
AMENDMENTS

Amendment 1

1.
Amendment 1 inserts a title to Part 1 of Schedule 1 to the Bill . The addition of
this title indicates that items 1 to 14 contain amendments to the
Copyright Act. Part II, added inserted by amendment 3, sets out
application provisions.

Amendment 2

2.
Amendment 2 will
add s item 4A to Schedule
1.

3.
Item 4A amends section 76 of the Copyright Act by substituting a
new provision consequential
to the enactment of the Designs Act 2002 . Section 76 deals with the situation where a
design has been falsely registered under the Designs Act
1906. The new wording recognises the enactment of the Designs
Act 2002 and different terms included in it. The purpose of
section 76 is unchanged. Section 76 protects the
owner of copyright in an artistic work where a corresponding design
has been registered without the copyright owner’s
knowledge. It assists the copyright owner to enforce
copyright against persons registered as owners of the design (but
not against bona fide assignees or licensees). Where proceedings are brought under the Copyright
Act, the defence to copyright infringement at section 75 does not
apply. In addition, the design is treated as if it had never
been registered for the purpose of the proceedings and nothing in
the Designs Act 2002 constitutes a
defence. The amendments
replace the references to the Designs Act 1906 with reference s to the
Designs Act 2002 and update the language to reflect
th e terminology
used in the Designs Act 2002 .

Amendment 3

4.
Amendment 3 adds items 15 to 20 to Schedule 1 of the Bill . These items are
application provisions in respect of the amendments made to the
Copyright Act by the
Bill .

5.
Item 15 provides for application of the amendments made by items 2
and 3 to the definition of ‘corresponding design’ at
section 74 of the Copyright Act. ‘Corresponding
design’ is a key term used in sections 75 to 77 and new
77A. The new definition of ‘corresponding design’
will apply in the same circumstances as the amendments made to
sections 75, 76 and 77 apply. It will also appl y ies in respect to section 77A where that
provision operates.

6.
Item 16 provides that the amendments made to section 75 of the
Copyright Act apply to products embodying a corresponding design
that are made after commencing day.

7.
Item 17 provides that the amendments made to section 76 apply in
relation to proceedings brought under the Copyright Act on or after
the commencing day where the corresponding design was registered under
the Designs Act 2002 after the
commenc e ment
o f that
Act. The
amended section 76 will not apply where the corresponding design is
taken to be registered under the Designs Act
2002 through the
operation of section 151
of that Act. where a design
has been falsely registered under the Designs Act 2002. This
item also provides that the transitional provisions at section 151
do not operate in determining whether a design has been registered
under the Designs Act 2002. (This means that, if a copyright
proceeding is commenced after the commencing day, section 151 will
not apply the new wording of section 76 to a corresponding design
that was falsely registered under the Designs Act
1906.)

8.
Sub-item 18(1) provides that new paragraph 77(1)(b) as amended by
item 5 applies to articles and products to which a corresponding
design has been applied industrially that are sold, let for hire or
offered or exposed for sale on or after the commencing day.
The new wording of paragraph 77(1)(b) has been adopted to make
clear that the defence in section 77 applies where
industrialisation takes place before or after 1 October 1990, the
commencing date for paragraphs 77(1)(b) and (c) as amended by the
Copyright Amendment Act 1989 . That is, section 77 does
not require that first industrial application must take place on or
after 1 October 1990. This application provision does not
change the operation of paragraph 77(1)(b) before the commencing
day.

9.
Sub-item 18(2) provides that new paragraph 77(1)(c) as amended by
item 5 applies to products to which a corresponding design has been
applied industrially that are sold, let for hire or offered or
exposed for sale or hire on or after the commencing day.
Section 77 requires that sales occur after 1 October 1990.
This sub-item indicates that the amended definition of
‘corresponding design’ applies to sales that take place
on or after commencing day. It is not intended that, where
sales have occurred after 1 October 1990, further sales must occur
after the commencing day.

10. Sub-item
18(3) provides that the amendments made to section 77 by items 6 to
13 apply to products that are industrially applied and sold after
commencing day and to complete specifications or representations
first published in Australia after the commencing day.

11. Item 19
provides that new section 77A applies to reproductions made on or
after commencing day.

12. Item 20
adds a definition of ‘commencing day’ for the purpose
of these application provisions.

14.
Item 16A amends section 3 of the
Scout Association Act 1924 to replace the
reference to the Designs Act 1906-1912 with one to the
Designs Act 2002 consequential to the repeal of the Designs
Act 1906 and commencement of the Designs Act
2002 .